United States v. Grady

• Decision Date: 22 November 2021
• Docket Number: No. 20-14341,20-14341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clare Therese GRADY, Carmen Trotta, Martha Hennessy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

18 F.4th 1275

UNITED STATES of America, Plaintiff-Appellee,

v.Clare Therese GRADY, Carmen Trotta, Martha Hennessy, Defendants-Appellants.

No. 20-14341

United States Court of Appeals, Eleventh Circuit.

Filed: November 22, 2021

Justin Davids, Assistant U.S. Attorney, James C. Stuchell, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Plaintiff-Appellee.

Joseph M. Cosgrove, Law Office of Joseph M. Cosgrove, Wilkes Barre, PA, L. Katie Williams, L. Kathleen Willcox, Attorney at Law, Brunswick, GA, for Defendant-Appellant Clare Therese Grady.

Juanita Marie Holsey, The Holsey Law Firm, LLC, Jesup, GA, for Defendant-Appellant Carmen Trotta.

Stephanie R. Amiotte, Stephanie R. Amiotte Esq., Charlotte, NC, for Defendant-Appellant Martha Hennessy.

Before Branch, Grant, and Ed Carnes, Circuit Judges.

BRANCH, Circuit Judge:

In the late-night hours of April 4, 2018, Clare Grady, Martha Hennessy, Carmen Trotta, and several others associated with the Plowshares movement¹ surreptitiously and illegally entered the Naval Submarine Base Kings Bay in St. Marys, Georgia. Once inside the Kings Bay naval base, the defendants executed their plans to engage in religious protest of nuclear weapons by engaging in what they refer to as "symbolic disarmament." These actions, however, were far more than symbolic; in fact, they were incredibly destructive—spray painting numerous anti-nuclear and religious messages on the sidewalk and on monuments; pouring donated blood from the movement's members on the door of a building and the sidewalk; hammering on a decommissioned missile display; placing crime scene tape around the base; removing signage and part of a monument; and cutting through wiring and fencing in order to enter a highly secured area and display banners protesting nuclear weapons. Base security ultimately apprehended the group peacefully, and federal charges were brought against the involved individuals. Grady, Hennessy, and Trotta proceeded to a jury trial, and now appeal their respective convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.

Jointly, the trio argue that (1) the district court erred in denying their respective motions to dismiss the indictment under the Religious Freedom and Restoration Act ("RFRA"), and (2) the district court erred in holding them jointly and severally liable for the full restitution amount.

Additionally, Hennessy and Trotta jointly argue that (3) the district court abused its discretion when it denied their respective requests for a guidelines reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

Turning to their individual arguments, Hennessy argues that (4) the district court abused its discretion in increasing her offense level under U.S.S.G. § 2B1.1(b)(1)(C) when it treated the total damages amount as the loss amount. And Grady argues that the district court erred in (5) not giving her requested mistake-of-fact jury instruction, and (6) failing to consider or address RFRA at sentencing. After careful consideration and with the benefit of oral argument, we affirm.

I. Background

Naval Submarine Base Kings Bay is home to the only strategic weapons facility on the Eastern Seaboard and houses numerous submarines and critical assets. The Kings Bay naval base is large, covering approximately 17,000 acres with 26 miles of perimeter fencing and employing approximately 10,500 people as part of the staff or crew. The facility is highly secured, with only three authorized points of entry, which are manned at all times by armed guards. The base area behind the perimeter fencing is not open to the general public. Anyone who attempts to gain access to the base other than through the three main gates is trespassing, and guards are authorized to exercise deadly force against unauthorized entry or trespassers if necessary.

Other higher security areas within the perimeter fencing of the Kings Bay naval base are protected by additional barriers. For instance, an area referred to as the "Limited Area" is separated from other areas of the base by double lines of fencing and concertina wire.² Written warnings that deadly force may be used against intruders are posted along the fencing and an oral announcement to that effect is played over a loudspeaker approximately every eight to nine minutes. In addition to numerous buildings and other assets inside the base, there is a static missile display that showcases several decommissioned ballistic missiles.

And outside the gates of the naval base is a static submarine display known as the Bancroft Memorial. Several times a year, different groups request and receive permission from the Kings Bay naval base's Public Affairs Office to demonstrate or protest at the Bancroft Memorial. For instance, the group Pax Christi holds a candlelight vigil twice a year in protest of the operations on the base. And another group demonstrates around the anniversary of the Hiroshima and Nagasaki bombings.

In this case, however, the defendants did not request or receive permission to protest at the Bancroft Memorial site or anywhere else. Instead, after approximately two years of secret planning, under the cover of darkness on April 4, 2018, Grady, Hennessy, Trotta, and four other members of the Plowshares Movement equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and other tools cut a padlock on the perimeter fencing of the Kings Bay naval base, opened a gate, and illegally entered the base. The group intended to engage in symbolic disarmament as part of their faith, which they profess requires them to "practice peaceful activism and prevent nuclear war." Once inside the Kings Bay naval base, the seven individuals split into groups and proceeded to different areas of the base, including the administration building, the static missile display, and the nuclear weapons storage bunkers.

Grady and Hennessy went to the administration building where they spray-painted numerous anti-nuclear and religious messages on the sidewalk. They poured bottles of human blood on the door of the building and sidewalk, and placed crime scene tape around the building. They also taped an "indictment"³ of the government to the door and left the book Doomsday Machine, Confessions of a Nuclear War Planner by Daniel Ellsberg at the building. Grady and Hennessy then joined the others at the static missile display, where they hammered on the display, hung more crime scene tape, and spray-painted messages on the base of the display. Other group members removed signage and part of a monument, poured more human blood, and spray-painted other monuments.⁴

Meanwhile, Trotta proceeded with other individuals to the highly secured "Limited Area" where they cut through fencing and concertina wire and entered the area. There they displayed banners protesting the morality of nuclear weapons and prayed.

After several hours, all seven individuals were apprehended peacefully by security. They all were subsequently indicted on charges of: (1) conspiracy, in violation of 18 U.S.C. §§ 371 and 2 ;⁵ (2) destruction of property on a naval installation, in violation of 18 U.S.C. §§ 1363 and 2;⁶ (3) depredation of government property, in violation of 18 U.S.C. §§ 1361 and 2;⁷ and (4) trespass, in violation of 18 U.S.C. § 1382.⁸

As relevant to this appeal, Grady, Hennessy, and Trotta each filed virtually identical motions to dismiss the indictment, arguing that their prosecution violated RFRA. Specifically, they asserted that their actions at the Kings Bay naval base were "in accordance with their deeply held religious beliefs that nuclear weapons are immoral and illegal," and the government's prosecution of them substantially burdened their religious exercise in violation of RFRA. They maintained that, under RFRA, the government could not show that the decision to charge the defendants was the least-restrictive means of furthering its compelling interests in the safety and security of the base. Grady, Hennessy, and Trotta proposed the following less restrictive alternatives of achieving the government's compelling interest: (1) reducing the number and severity of the charges; (2) not prosecuting and offering instead civil injunctions, civil damages, community service, "ban and bar" letters, or pre-trial diversion; and (3) giving the defendants permission to practice symbolic disarmament in a designated area on the base. Thus, they argued that the indictment must be dismissed. The government opposed the motions.

Following a two-day evidentiary hearing, the district court denied their motions to dismiss. The district court held that Grady, Hennessy, and Trotta had established a prima facie case under RFRA because they had shown that their actions at the Kings Bay naval base were a sincere religious exercise and that the laws in question substantially burdened their religious exercise. The district court then explained that the government met its burden of demonstrating that it had a compelling interest in the (1) safety, (2) security, and (3) smooth operation of the naval base, naval base personnel, and naval base assets. Finally, the district court explained that the government met its burden of establishing that the application of the laws in question to each of the defendants was "the least restrictive means of furthering any one of th[o]se compelling government interests."

Grady, Hennessy, and Trotta proceeded to a jury trial and were convicted of all charges.

For sentencing purposes, the statutory maximum for the conspiracy offense was five years’ imprisonment. See 18 U.S.C. § 371. The statutory maximum for destruction of property on a naval installation was five years’ imprisonment. See 18 U.S.C. § 1363. The statutory maximum for depredation of government property was 10 years’ imprisonment. See 18 U.S.C. § 1361. Finally, the statutory maximum for trespass...